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tv   Sexual Orientation Employment Discrimination Oral Argument  CSPAN  October 11, 2019 10:05pm-11:10pm EDT

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want you can't always get what you want >> on saturday, president trump delivers marks at the values voters summit in washington dc, live at 6:15 p.m. eastern on c-span, online at, or listen live on the free c-span radio app. ♪ c-span's washington journal, live every day with news and policy issues that impact you. coming up saturday morning, we speak with reporters from around the country on how the house democrats' impeachment inquiry is impacted -- is impacting legislative issues in virginia, utah, texas, new york and california congressional districts. watch c-span's washington journal live at 7:00 a.m. eastern saturday morning, join the discussion. this week the supreme court heard oral argument for two
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consolidated cases concerning whether federal civil rights law protects against sectoral orientation employment discrimination. this is one hour. >> this discrimination is because of sex, because the adverse employment action is based on the male employee's that you to conform to a particular expectation on how men should behave, namely that men should be attractive only to
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women, and not men. there is no analytic difference between this discrimination in forms of discrimination already recognized. -- example, discriminant discrimination against men who are effeminate. that discrimination is because of nonconformity with an expectation about how men should hate. the attempt to carve out discrimination against men for not being gay from title vii cannot be administered with consistency or integrity. in the words of the on bond second circuit, it forces judges been counting to determine whether or not discrimination is based on sex or orientation. that is futile, because when a man is discriminated against for being gay, he is discriminated against for not conforming to expectations on how men should behave.
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finally, some employers may have policies of denying employment opportunities to both gay men and lesbians and does not change the unlawfulness alleged by employees here. under anhose policies umbrella freeze like sexual orientation discrimination can't tied the fact that such an employer is a double discriminator. it discriminates against men who do not conform to a male stereotype and against women who do not conform to an expectation about females. >> how do you answer the thisent that in 1954, could not have been in congress's mind, because in many states, male same-sex relations was a criminal offense. the american psychiatric association labeled homosexuality a mental illness. words ofk he read the
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the statute. this court has recognized forms of sex discrimination that were not in congress's contemplation in 1964. 1964 were the days of "mad men," and most courts didn't find sexual harassment to be actionable until this court did. in price waterhouse, this court recognized discrimination against a woman who swore like a man and didn't wear makeup and wore like a man and reached title vii. you agree or disagree with the statement that the statute should be read to encompass sexual orientation discrimination to avoid placing the entire burden of updating old statutes on the legislative branch. >> i disagree with judge pozen are. i don't think you need to do any updating here. you should read the words which
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are understood, which are men and women. title vii was intended to make sure men were not disadvantaged relative to women and women were not disadvantage relative to men. two employees, both of whom tell you that they married their partner bill last weekend, when you fire the mail that married bill and to give the female employee who married bill a few days off to celebrate the joyous event, that is discrimination because of sex. >> if no one has further questions, i will reserve the manger of my time. [laughter] >> i think we will have further questions. [laughter] >> what do you do with the argument this is a nondiscriminatory policy because -- tolies equally to men relationships between women and relationships between men? emphasizeords, you that you need to know the sex of the individuals involved before you can determine whether there is a violation, and that brings
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it within title vii. what about the response that you do not need to know the sex of people involved if you just have a policy against same sex, see you don't care whether the participants are women or men, if they are the same, it is covered by the policy? >> that is no different than having a policy that everyone should apply to the stereotype applicable to their sex. to use an example from the a policy onr cases, its face said you cannot guard someone of the opposite sex. a woman who seeks to guard a man is barred from that job, a man who seeks to guard a woman is barred from that job. instead of the word guard, put in the word date. a man can't do it but a woman can't, and a woman who wants to date a woman can't, but a man who wants to can. >> in that case it was the
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disparate impact. there are many more male prisoners to guard than females, so that policy, even though it applies to men guarding women, it had a disproportionate effect on women who wanted to be guards, because there were many more jobs guarding male prisoners than female prisoners. part of rawlinson that rested on disparate impacts was the height and weight requirements. the part about guarding was not a disparate impact. at most, the court noted in a footnote along the way that there were more guard positions available to women, but it was not a disparate impact. it was a disparate treatment case. so a male prison who wanted to guard someone at the prison for women in alabama would have to claim that he was discriminated against because of sex. he would have lost that game, but not on sex grounds.
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claim, but not on sex grounds. dotice ginsburg: what do you with the example that was brought up that unlike race, there are distinctions that are maybe even required between males and females, like physical fitness tests? in twont to answer parts. the first is, there is no question there is a differential between men and women, that is men and women being treated differently. what is at issue is whether that differential treatment constitutes unlawful discrimination under title vii. johnson against santa clara county transportation agency, paul johnson was not denied the job because of his sex, but because it was a permissible affirmative action. the court said miss rawlinson was discriminated against because of sex, but there was a
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, so congress writes an exemption into the statute, but this court shouldn't write exemptions >> -- exemptions. >> you think we should have exemptions for thosebfoq -- for thosebfoq's? a big issue in the country's same-sex bathroom usage. how are those cases going to be dealt with absent they congressional exemption other than bfoq. >> everyone agrees you have men's women -- men's bathrooms and women's bathrooms because of sex. the question becomes, is that permissible. if i could again with an example, i will show why. when i got up, the chief justice says to me, miss karlan. and i would bet any amount of
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money that when mr. harris gets up, he will say, mr. harris. he treats us differently because of sex but that is not discriminatory because neither of us has been treated with a disadvantage. what the statute means when it says discriminated against is to cause an injury. requiring people generally to use separate bathrooms is not an injury. may be howsure that they would see it, and to what extent should we take that into account? same thing with a gender specific uniform requirement. how would you deal with those, given at least that those affected might think they are suffering harm? >> there is no categorical rule about these. the fact that all the men sitting at the council table knew they had to wear ties today and i was free not to did not cause an injury. on the other hand, even dissenters, if the court said women who come to argue should
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argue in an outfit in the men should wear ties. >> you are talking and observed example. i need a real world example. >> i will give your real world example. injuryt cause for a female to wear a skirt. but to cause a telephone lineman to wear a skirt. >> the case we are taking up is more in the realm of my question. what i am suggesting is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, most people to find -- would find them innocuous, but affected communities will not, and they will find harm. withoes your test deal
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that one way or the other? that's what i'm asking you to address if you would like to. >> you are treating people differently because of sex and that is what we are asking you to hold here when you treat a gay man who wants to date a man differently than a woman who wants to date a man. that is discrimination. said, which what i is, you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex. when the chief justice calls me miss, i am not injured. >> you are not, but another person might be. are they reasonable or not? i'm wondering how you decide those cases. >> in idiosyncratic preference preferenceyncratic does not otherwise void a bathroom rule or a uniform. >> is it idiosyncratic for a
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transgender person to prefer a gender -- to prefer a bathroom that is different from the one of their biological sex? idiosyncratic for a transgender person to wish to dress in a different style of dress than his or her biological sex? >> no. >> then the question at the end of the day is that those are acts of discrimination under title vii as you understand? better but it would be advised to ask the question of someone who is representing someone who is transgender. i'm representing someone who is gay. i am truly not trying to dodge the question. >> how do we differentiate the two? what is the legal test that you propose to say, this is discrimination because of sex, as you said, calling me one thing and your friend another is
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discriminatory, but it is ok because there is no harm. what is the test we apply to say when it is harm and when it isn't? >> it is not discrimination to call me miss carlin and mr. harris mr. harris. it is because of sex that we were treated differently, but as this made it clear several -- this court made it clear several time, discrimination is with an injury the lies prepared to recognize. this is why i am not begging the question, the court said diminutive effects are exempted from statutes presumptively. >> why is a dress code for hooters that requires all women dress, is that discriminatory? >> yes, it is. >> is it discriminatory for the woman who doesn't want to wear
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it, because it is demeaning? >> yes, it is. ithow about, is discriminatory for the restaurant not to hire a transgender man who wants to wear the uniform? i want to get to the question of sexual orientation here. alluding is, and i haven't heard the explanation, which is the question of, how do we tell what is actionable and not? and when does that discrimination begin? >> i will give you an analogy that may be helpful for the court. for many years there was an argument that separate but equal was acceptable, and this court ultimately concluded that when it came to race, separate but equal was not permissible. i don't think the court has held anything like that with regard to sex, but you are going to have to answer that question about dress codes regardless of
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how you rule in either my case or miss stevens' case. you say the test, is the person injured? yes, there is a differential based on gender, but most people are not injured by having separate bathrooms. in fact, most people would prefer it. are you saying we have to wait for the testing case for the noton who might be injured being allowed to use the bathroom of the other sex? >> it is highly unlikely you are going to see cases like that. the bathroom issue has been around since the beginning of title vii. title vii has a special provision that says when you segregate people, the question is whether that segregation denies them employment opportunities. and it is hard to see how requiring men to use a men's room and women to use a women's room does nice them employment
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opportunity. >> may i ask you to respond to what some people will say about this court if we rule in your favor? and what they will say is that, should title vii prohibit discrimination based on sexual orientation is a big policy issue, and a different poly issue -- a different policy issue from the one congress thought it was addressing in 1964, and congress has been asked repeatedly in the years since 1964 to address this question. the equality act is before congress right now. congress has declined or failed to act on these requests. and if the court takes this up and interprets this 1964 statute two prohibit discrimination based on sexual orientation, we
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are going to be acting exactly like a legislature. we might as will just take the equality act and issue that is our opinion and say, as judge pose nurse says, that courts need to intervene on questions like this when the legislative branch simply will not do so. how would we respond to that question? >> the fact a loose cannon like judge poster says, do whatever you feel like, is not what we are asking for. we are saying, if you read the words, because of sex, and in 1964, what did those words mean? treating men differently from women. so if in 1964 it would be discrimination to fire a woman who wanted, a woman who enjoyed sewing, and there is a famous case, the foundational case on sexual orientation where they fired a man. >> we would not be deciding a major policy question that was not in congress's mind in 1964 and that congress has repeatedly
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to address since then. >> no more than what you did in other cases, price waterhouse, newport. >> in my mind, there are three basic parts in this case on the others. to language, you dealt with that. the third one is the one alito is bringing up as it comes out of the briefs. as i read it, i would put it in these terms. imagine a statute that says, must pay da da da damages. best a long time ago. that doesn't apply to german policemen. demeaning is the same. german policeman are policeman, but the statute doesn't apply to that. how do we know? we know through a lot of history, etc.
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put in the the box i argument that justice alito made. the argument is that at the time, congress would not have dreamt of this, and therefore the words that they applied, they meant to exclude the gays and transgender. what i need to hear is a clear answer to that question. way to think about this is to ask about the specific behavior that is at issue, which is that a man dates a man. then ask, how does that fit within the language? i'm about to explain why it fits , which is, the idea was people should not be denied jobs they are qualified to do, award-winning advocates for child services like bill buffett
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should not be denied a job because they have done something that, if they were a woman -- a woman, would cause no problems at all. discrimination the court had, a woman who has children at home should not be denied a job that a man who has children at home. all you have to do to say is to say, those words apply to a woman who has a wife at home. >> 23 states have been passing laws to address these issues. i don't know how many, but i think it is a big part of them, when they do extend coverage against discrimination on the basis of sex to sexual orientation, they also include exemption for religious organizations. if we are going to be extending the understanding of what sex encompasses, how do we address
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that other concern, that at least, i think almost every state legislature that has extended it has felt compelled to address? >> i would say three things. the first, this court has already created an exemption for sincere religious believes for a large category of employees through the ministerial exception. the second is that congress balanced these issues and rebalance them several times in the co-religions and exception. the third thing is to understand this in context, which is 85% of american employers are not covered by title vii. so if those employers have religious exemptions to hire someone who is gay, they are free from doing that. and number four, the question is not whether people have religious objections to homosexuality, it's where they have religious exceptions to hiring someone who is gay or lesbian.
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and there are many employers whose own religious beliefs would tell them this is immoral for them have no problem in hiring gays and lesbians who are required -- who are qualified to do a job. if the court could do one thing and thinking to 1964, it would be asked the court to look at foundational opinions on which everybody has played a game of telephone ever since. where is the idea that homosexuality wasn't covered coming from? the case of a black gay man who said he was treated worse than gay white men. it wasn't even a sexual discrimination case per the second was a straight man who was denied a job because he said his hobby was sewing, and the employer said, that is an effeminate hobby so i bet you are gay. if you look at the reasoning in these cases, it was not until hines late that any court -- ly that any court did in interpretation and since then a
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majority of judges have held sexual orientation is a subset of sex discrimination. >> justice breyer characterized what i said earlier is a -- earlier as conceding sexual orientation discrimination fits the words of title vii, but that we should take a broader view of what congress had in mind. that was not the premise of my argument. the parties in their briefs have all these comparisons that will make your head spin if you try to figure them all out. let me just go to your core one which you began with today. a man is attracted to other men. he is fired. a woman is attracted to men. she is not fired. you say that is all you need to look at, that is discrimination on the basis of sex, right? >> yes. >> that is not, because there
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are two possible explanations. it could be based on sexual discrimination or could be because the employer does not want to hire men. if you add to other cases, a man who is attracted to women, not fired, a woman attracted to women, is fired, then you have a much better idea of the basis of the discrimination, and it is sexual orientation, not sex. >> but into cases before this court where the employer already hired these men, the supposition in your example doesn't apply. we know this is an employer that is willing to hire men. ae employer had only men as sky diving instructors, so when he fires a man who wants to date man --nd does not fire a >> but the point is that discrimination on the basis of sex understood by congress in 1964 is a different concept than
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sexual orientation. that is what you are fighting. you are trying to change the meaning of what congress understood sex to mean and what everybody understood sex to mean in 1964. >> i'm not trained to change that at all. if you fire the man who loves selling and you don't fire the woman who loves selling, that is sex discrimination, pure and simple. thank you., counsel? [laughter] mr. chief justice, and may it in 1982he court, wisconsin became the first state to pass a law banning discrimination because of sexual
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discrimination and private employment. it was celebrated as a landmark achievement for gay rights. according to the plaintiffs here, the wisconsin landmark law had little if any practical impact because congress already banned sexual orientation discrimination nationwide 18 years earlier in the civil rights act of 1964. to quote judge lynch's dissent, congress did no such thing. sex and sexual orientation are independent and distinct, and sexual orientation discrimination by itself does not constitute discrimination because of sex under title vii. the core error in the second circuit holding is similar to the ever that led the court to reverse another case. in that case, the circuit held same-sex harassment claims were categorically excluded from title vii. this court correctly reversed such claims may be
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recognizable as long as all claims of the statute are met, including what this court called the critical inquiry into whether members of one sex were treated worse as members of the other sex. this is a mirror image of the other case, whereas lower courts in that case adopted a categorical inclusion, the second circuit adopted a rule of plaintiffsn which alleging sexual orientation discrimination receive a free pass and whether men and women are treated differently because of their sex. the second circuit change the question from sex to sexual orientation. womencause both men and may have same-sex attractions, standalone allegation of sexual orientation discrimination cannot without more showed discriminatory treatment. can i understand your argument in context? the employer looks at a man who says one of my hobbies is
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selling, and the employer says, that is an effeminate hobby. you may be gay, so i am not hiring you. to be trying to parse that there is some sort of substantial legal difference between a belief that you are to effeminate -- that you are too effeminate, or that a lesbian is too macho, from, you are attracted to the other sex? willdon't disagree there be tough cases at the margin, but the problem is the second circuit glossed over those hard questions and said we are going to adopt -- >> why aren't you glossing over the foq? you are confusing three
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concepts. title vii has causation and injury. not hiring, not firing, that is the injury. now the question is what caused that? being too effeminate is a sexual trait. being a man attracted to another man is a sexual trait. it is caused by those two things. guards then we move to the third is there ahich is, reason independent of your innateus belief, or your hatred and discrimination for why you were treating this person differently? a bfoqthere is, you have . you don't have to hire them, you can fire them. but if there isn't, they are doing their job and they are not bothering you, and they are not bringing their boyfriend or girlfriend, if it is the opposite sex, to a function, to
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your private home, because you don't want them there or whatever else is offensive to you, they are just working. why those aretand hard cases, any harder than what the law implies for race discrimination, religious discrimination, and any other forms, national origin discrimination. bfoq -- new nhe -- foq has been applied. said, i don'toyer hire women to work on platforms. the only people i higher are men.
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that would have been discriminatory against the women seeking jobs. but if you are a male being harassed by other men, and the employer says, you can't compare to what i am doing -- compare what i am doing to someone who discriminates on the basis of sex, because i don't hire women at all? say, is not a defense to in cases like martin marietta, it was not a defense for that employer to say, because i have hired other women, it excuses this. to answer your question, that wouldn't be discrimination. >> martin marietta was different because the clause applied to women and did not apply to men. you had that distinction. take price waterhouse. ippose the employer said,
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don't want any men who are not sufficiently macho and i don't want women who are not sufficiently feminine. if price waterhouse said we will dream a man who is not sufficiently macho the same way we treated and hopkins, as i understand -- treated ann hopkins, i understand from your argument that would not be discrimination. >> when employers have traits that it values, there can't be a list of criteria for men and a list for women. your honorthetical said, there would be two sets of criteria, so may be a man who doesn't meet the women's criteria and woman who doesn't meet the men's criteria would have a claim. it to would not excuse
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say there are different criteria for each sex. >> suppose a catholic and you want to get married. the employer fires the catholic. he's not against catholics. he is against intermarriage. and i can use the same example with race. i take it from your argument that there would be no claim. >> there would be a claim in both situations. >> if there is a claim there, why isn't there here? >> in the race context -- >> i didn't say race. i said religion. >> religion is defined as the only one of pregnant -- besides pregnancy that has expansive definition. it would be religious discrimination. between a couple that is catholic and jewish into catholics, the only difference between this couples is there religion. >> and the only difference between the couples here is that one is a man rather than a woman. >> except that it also
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introduces an independent characteristic that can be neutral. i am notesn't d, against catholics or jews, i am against intermarriage. >> if that person exists, i think it is foreign. >> i promise you there are many people in the religious context who are against intermarriage and are not against catholics or jews. that is not an unrealistic example. all i find in that example is identical case to this one. >> most people who would oppose enter religious marriage would o for -- who would oppose marriages -- >> independent characteristics are all over our cases. manhunt was all about an independent characteristic, life
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expectancy. but we did not say, we were going into a different sort of analysis were we don't just say the same thing that happened to you if the same thing would happen to you if you were a woman, because we had an independent characteristic, which was life expectancy. so the same thing here. all these hypotheticals are really about the same thing, which is that manhart gave us a very simple test. what do you do with you look to see if there is discrimination under title vii, you say, with the same thing have happened if you are of a different sex? karlan went through all the ways where obviously the same thing would not have happened to you if you were a different sex, you being her client. there are independent characteristics of all these
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cases. we insisted on this extremely simple test. if you apply that test. >> let me address manhart and the test generally. in manhart this court noted that the policy wasn't just about longevity. the employer made no attempt to do any sort of bona fide underwriting or life expectancy, it simply charge the women more. if a woman and man each had a 75 year life expectancy, they would each be charged different rates. >> manhart was clear that women in the aggregate were going to be fine under this policy because we mean in the aggregate do have a higher life expectancy. clear why another aspect of your argument is wrong, because you say we have to look at these big classes, but there is nothing wrong in manhart when you looked at the classes. what became wrong in manhart was when you looked at individuals.
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and when you look at individuals, which manhart insisted once you do, and when you apply the test that manhart insisted you apply, would this woman have been treated differently if she were a man? the answer is yes. similarly, i will ask again, if you apply that test, don't you lose? and if you do lose, why should we not apply that test? inthe problem with the test, manhart, in newport news, in employerrietta, the helps you draw inferences from the evidence. the problem here is, unless the plaintiffs can point to something outside the comparison to tell us why that is irrelevant, they are assuming their conclusion. their comparator would say, you ask if a gay man has suffered sex six grit -- sex discrimination by comparing him to a heterosexual woman and that version of the comparator can
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isolate whether it is the section of the sexual orientation. unless they can point to something outside the comparator , the comparator doesn't answer the ultimate question. >> it may not isolate the proximate cause, but the argument on the other cited the anguage of the statute is more generous causation standard. perhaps there are two causal factors at work here, but is one of them sex in the narrow sense of biological gender? -- what i am arguing is that simply sexual orientation standing alone is not, without more, sex discrimination. >> your response to justice
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kagan was, i need to focus on sexual orientation, because that is the primary causal factor here are the firing. the response from the other side is that the statute has a more generous causal formulation, so perhaps you are right that at some level sexual orientation is in play here, but isn't sex also because of the change of the first variable? and isn't that enough? the statute talks about a material causal factor, not the sole cause or proximate cause, but a cause. in what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case? >> you are referring to the motivating factor language.
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in the benchmark scenario i referred to, sex would not be a if you look ator mr. boss stock's complaint and strip out any reference to his sexual orientation, it would make little if any sense. in price waterhouse the court gave guidance on how to do the motivating factor analysis and said, imagine you gave the employer truth serum and what were your true reasons for this? would one of them be the characteristic? as i recall, sex would not be. >> let's do truth serum. wouldn't the employer maybe say it is because this person was a men?ho liked other and isn't that first part sex? >> in common parlance we would cause that a saint -- call that
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a same-sex attraction. say of the amicus briefs much discrimination against gay and lesbian people is based on the animus against gay man or lesbian women. if there is some reason to believe that in that scenario, that may be a motivating factor. but when you simply have an employee saying, i was fired because of my sexual orientation, that alone does not show what this court called the critical issue of distinguishing between men and women. distinctionrawing a between the literal meaning of because of sex on the ordinary meaning of because of sex, and if so, how are we supposed to think about ordinary meaning in this case >> -- in this case? >> i don't see meaningful difference between the two. to the questions about patent -- toons about bathrooms,
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bathrooms, a about few apply the manhart test, i don't see any way the single-sex bathrooms or showers -- someone whoto have is injured. in the response about bathrooms, who is the complaining plaintiff? to most people, they would not be complaining plaintiffs because they are not injured by the separate bathrooms. in fact, they like it. >> yes, although if someone is fired, imagine a factory with hazardous materials where people man usedter work and a the women's bathroom and is fired. that person would be injured. under the test, they would say, just change the sex and that person would not have been fired. but that is not a similarly situated person. a proper analysis would say that such as use the showering facility that
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corresponds to your biological sex, the man using the women's shower, the comparator is not a man who uses a women's shower, it is a woman who is using a man's shower, because you are not looking at similarly situated people. discussed in espinoza states and in espinoza and interpreting national origin discrimination, this court said the state practice parallel laws interpretation is instructive. 23 states have done this by legislation n0 have done it by judicial interpretation. it shows it is not redundancy that sex and sexual orientation in 1964 and today are different concepts that mean different things in common users of the language both today and in 1964 would have recognized that. can they ever be?
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judge lynch said homophobic stereotypes are unrelated to sexual orientation. the very first case before us shows that that is just not true . is highlyentation correlated to stereotypes. if you are too much away woman, you are a lesbian. happens all the time. i find it somewhat difficult to unwind the two, if not difficult, nearly impossible. reality a sad homophobic slurs are often directed at heterosexual people. >> that is ok, under your theory. >> it is not if that person can show discrimination because of sex.
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czar. opinionthe opinion isarda instructive and tells juries if they find sexual discrimination, they have found sex discrimination. the answer is not to change the ultimate inquiry and replace it with something congress could never have intended. imagine the decision-maker in a particular case is behind a veil of a subordinate who has reviewed candidates for a position says, i will tell you two things about this candidate, the best candidate for the job, and this candidate is attracted to members of the same sex. notthe employer says, i'm going to hire this person for that reason. is that discrimination on the basis of sex, where the employer doesn't even know the sex of the individual involved?
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discrimination on the basis of sex. if you get a resume that has a name that could be male or female and something suggests the person is gay and they are not hired for that reason, that would be sexual orientation discrimination. that has nothing whatsoever to do with sex discrimination. >> thank you, counsel. >> mr. chief justice, and may it please the court, the issue is not whether congress can or should prohibit employment discrimination because of sexual orientation, the issue is whether it did so when it prohibited discrimination because of sex. it did not, for two reasons. first, sex means whether you are in mail -- whether you are male
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or female, not whether you are gay or straight. if you treat all gay men and women the same regardless of their sex, you are not discriminating against them because of their sex. second, any doubt is removed by the history of title vii related statutes, since unanimous interpretation by courts of the executive branch that execs the -- that existed for decades. congress has extended other statues that deal with sexual orientation but refused to do to -- to do so with title vii. the employee decision would nullify that choice. justice gorsuch, if i could address the question about the literal meaning of the statute, there are two responses to that argument. that, under that interpretation you could not fire a man for using the women's restroom, because in some at a physical sense, that man's sacks
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as a but-four cause for his is ang -- that man's sex cause for his firing. the reason is, and this is my second point, you are treating him the same as a similarly situated woman, a woman who uses the men's room. that is the critical analysis if you are determining someone has been discriminated against. notet me give you a hypothetical case. airline hires only women as cabin attendance, but it fires them if they marry. the airline defense is, whatever we are doing, it is not sex discrimination against women, because we don't hire any men or
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all, married or unmarried. that case, i take it from your brief, you would say no violation of title vii. >> now, your honor -- your honor, because the prohibition of hiring male flight attendants would in and of itself -- >> but the male is not the complainant, it is the woman who was fired because she was married. the male complainant might have a very good case, but my case is about a woman. >> my problem about the hypothetical is that the way it is constructed, there is presumably no men that have the job in the first place. if you say that in theory, men should be able to have the job, the question would be, would you also have fired men who were married? and if you only fired women who were married but not men who were married, that would be in violation of title vii because you are treating similarly situated people differently. >> that is in a idea to put into
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.ractice, by taking out the sex >> may i continue with this? is notothetical hypothetical, it is bogus against united airlines, and it was given, not challenge that they didn't hire men as cabinet attendance. but they fired this woman sheuse she married, when married, she wouldn't be attractive to the male passengers. the court of appeals said title vii was meant to strike out the entire spectrum of sex stereotyping. so if this woman was fired because she would no longer be so attractive to men if she was married, that is sex discrimination. have a male have to involved.
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this is a woman who was treated in a very stereotypical way. she is no longer young and attractive when she's married. >> i think the question is always, are you treating similarly situated men and women differently? there are times when issues of proof are difficult. for example, in the price eaterhouse case, anne was fired because she was aggressive. the way that case was resolved was because the woman had not brought her case in a timely fashion on the sex discrimination piece. the way the court resolved that decision was, it set all right -- >> that case never came to this court. >> gonna go back to your opening statement, the second part?
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you talked about the history of title vii and some of the subsequent legislative history. what strikes me, i was struck in reading your briefs, is that the are nots you are making ones we typically would accept. for many years the lodestar of this court's statutory interpretation has been the text of a statute, not the legislative history and certainly not subsequent legislative history. and the text of the statute appears to be pretty firmly in miss karlan's corner. did you discriminate against somebody, against her client, because of sex? yes, you did, because you fired the person because this was a man who loved other men, and part of that, and it only has to be part, we have made very clear, there is no search for soul causing title vii, part of that is you fired the person because he was a man.
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if he were a woman, he would not have been fired. this is the usual way in which we interpret statutes now. we look to laws. we don't look to predictions, we don't look to desires, we don't look to wishes, we look to laws. why doesn't that mean your argument failed? >> because what our brief attempts to do is make a straightforward textual argument. law distinguishes between sex and sexual orientation. those are different traits. that is why when congress wants to prohibit discrimination based on sexual orientation, it does not define sex as including sexual orientation. it lists it as a different trait. to the is your response two comparator problem,, we have -- twoscussing and comparator problem we have been discussing, and that one
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contributor cause is sex? >> >> the >> if you do the analysis the way those on the other side suggests, you eliminate the distinction between different nullify congress's careful decision in other statutes to protect sexual orientation and gender identities. >> is there anything in this record showing that the employee would not lesbian women? cases, and this may have been better for my colleague, but in these cases , the sexuals orientation cases, the employers have denied that they discriminate. the allegation is that person
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was discharged when he announced he was gay. there is nothing in the record that there was a policy on the employers part of discharging lesbian women. employer defense was, i did not fire him because he was gay, but if you think i vii is not based on sexual orientation. if i can address lastly that justice alito raised about updating, here i think the judicial ruling would be pernicious because when congress aeds to expand title vii, couple that with an expansion of
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the religious employers becausen to title vii of issues of gender identity raise different issues from a liberty -- religious liberty perspective. this would expand the scope of liability without getting consideration to religious liberty interests. that is why this is the type of issue better left to congress than the courts. i want to make sure i address your textual consideration because i think it oils down to the fact that sex and sexual orientation or different traits. title vii prohibits discrimination based on one of those traits as long as you treat men and women similar to the other traits exactly the same, you are not discriminating within the meaning of title vii. colin. minutes, ms.
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let me start with the question justice ginsburg asked, it is illustrative of contemporary dissemination cases, virtually none involve an employer. neither of the cases before you does that claims to have an across-the-board of firing all gay men and all lesbians. is a mans to happen who does not conform with some other gender-based stereotypes get hired, which puts them in the position that justice sotomayor mentioned, it is hard to figure out what is going on. the second point, the entire sideent on the other depends on the idea that men who are gay and women who are lesbians are eating treated the same, and that is just not so. if you look at what causes the problem, it is the man who says i married my partner, bill. bill, woman had married
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the textual language tells you that such individual. >> would you would dress the general statement that he goes woman, at should be a man who likes a man and a woman who likes a woman. varying the sex of the employee and the person to comb the employee is interested, -- >> show us an example from the case that you cannot do that. >> you can that you do not have to, all you have to do is show sex played a role. if a woman had come in and said i like to date men, you would not have fired her. >> what if the decision-maker makes the decision based on sexual orientation but does not
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know the biological sex of the person involved. >> there is no reported case that does that >> what if it happens? there are a lot of hypotheticals. if that discrimination on the basis of sex where the decision-maker does not know? somebody who interviewed candidates tells them that. this is saturday night live, pat, you cannot tell if it is a man or a woman. theoretically that person might be out there, but here is the broughte cases that are by somebody who says my employer knew who i was and fired me because i was a man or because i was a woman, somebody who says i
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will not tell you my sex, that person will lose. the case, i think your argument collapses because sexual orientation is a different thing from sex. they are has claimed the same, what we are saying is when somebody -- >> your argument is discrimination based on sexual casetation -- if it is the that there would be no liability in a situation where the decision-maker has no knowledge of sex, that cannot be true. case, itre was that might be the rare case where sexual orientation discrimination is not a subset of sex. the sex of the person they are firing, and knows the sex of the people they are a tractive, that is sex dissemination, here in simple. -- sex discrimination.
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discrimination against gay men and lesbians is not one thing. in 1964 if you look at brief, there was no phrase sexual orientation. discrimination against gay men which goes back to leviticus, and the discrimination of lesbians which was not part of leviticus. statesere were only 16 that clearly forbid some act in which lesbians could engage. the idea that this is one large idea about sexual orientation without reference to sex simply evokes the history and understanding, if you look at the harassment cases you see why this is true. gay men are harassed differently than lesbians.
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>> thank you, the case is submitted. >> c-span's "washington journal," live every day with news and policy issues that impact you. saturday morning, we will speak with reporters around the country on how the house in a craft impeachment inquiry is impacting legislative issues in virginia, utah, nebraska, texas, new york and california congressional districts. "atch "washington journal, join the discussion. book tv has live we can coverage of the southern festival of books from nashville, tennessee. saturday at 11:00 a.m. eastern, "a good provider is one who leads," "plane of
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snakes," " how we fight for our lives." sunday 1:00 p.m. eastern. at 2:00 p.m. eastern, "learning from the germans," cement power talks about her book "the education of an idealist," and "religion of fear." can coveragee we of the southern festival of books starting at 11:00 a.m. eastern saturday and at 1:00 p.m. sunday on book tv on c-span2. >> now the supreme court oral harrist r.g. & g.r. funeral homes versus eeoc. it protects against transgender employment discrimination. this is about one hour.


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